OPINION OF ADVOCATE GENERAL

delivered on 15 June 1995 (*1)

1.The European Parliament has brought an appeal against the judgment delivered on 30 November 1993 by the Court of First Instance (1) which allowed, on the basis of the Staff Regulations of Officials of the European Communities, the cumulative payment of daily subsistence allowances.

2.The respondent, Mr Vienne, is at present an official of the Parliament. His administrative status there has been marked by three successive phases: he was initially recruited as a member of the temporary staff (on 1 November 1990), then employed as a member of the auxiliary staff (1 January 1991) and then appointed as a probationary official (16 December 1991); he was established in October 1991. Having been recruited in Anderlecht, Brussels, where he lived with his family, he established residence when first appointed in Messancy, near the Belgium-Luxembourg frontier, in order to comply with his obligations under the Staff Regulations, although he maintained his family residence until he was established.

3.His dispute with the Parliament concerns payment of the daily subsistence allowance provided for in Article 10 of Annex VII to the Staff Regulations (hereinafter ‘Article 10’) until the end of his probationary period, plus one month (to 15 October 1992). That Article provides:

‘Where an official furnishes evidence that he must change his place of residence in order to satisfy the requirements of Article 20 of the Staff Regulations, (2) he shall be entitled for a period specified in paragraph 2 to a daily subsistence allowance as follows ...’.

The period for which the daily subsistence allowance is granted is fixed, pursuant to Article 10(2), as 120 or 180 days for officials or the period of probation plus one month in the case of probationary officials.

The period for which the same allowance can be granted to temporary staff (Article 25 of the Conditions of Employment of Other Servants of the European Communities (hereinafter ‘Conditions of Employment of Other Servants’) and auxiliary staff (Article 69 of the Conditions of Employment of Other Servants) is limited in each case to a maximum of one year, Article 10 being stated to be applicable in other respects.

4.Pursuant to the relevant provisions, (3) the Parliament paid Mr Vienne the daily subsistence allowance as from 1 November 1990 but stopped paying it as from 21 April 1992, that is to say almost six months before the end of his probationary period. The Parliament considered that it was appropriate to aggregate the various periods served by the recipient and not to pay the allowance beyond the time-limit of twelve months laid down by Article 10.

5.In response to the Parliament's refusal to pay him the allowance until the end of his probationary period, plus one month (that is, from 22 April 1992 to 15 October 1992), Mr Vienne instituted proceedings before the Court of First Instance for annulment of the Parliament's adverse decision of 2 February 1993. He alleged in particular an infringement of Article 10.

6.By judgment of 30 November 1993, the Court of First Instance upheld his claim.

It found, first, that ‘no provision of the Staff Regulations or Conditions of Employment of Other Servants expressly lays down restrictive rules governing the circumstances of the present case. In particular, the text of Article 10 of Annex VII to the Staff Regulations does not prevent the cumulative grant of the daily subsistence allowance, as requested by the applicant’. (4)

On the contrary, the Court of First Instance took the view that an upper limit on the period for which the daily subsistence allowance can be granted, which the Parliament seeks to apply to the probationary period, would disregard the precarious nature of the employment relationship characterizing the administrative situation of probationary officials. (5)

The Court of First Instance considered that in such circumstances, where the employment relationship has always been precarious, ‘... the daily subsistence allowance is granted for a specific purpose: it seems reasonable to encourage the person concerned to refrain from transferring his residence, a move which, in the event of his not being established, would be premature and would, in the event of termination of his service, give rise, pursuant to Article 9(1) and (2) of Annex VII to the Staff Regulations, to a double reimbursement of removal expenses. In those circumstances, the person concerned must be entitled in return, pursuant to Article 10 of Annex VII to the Staff Regulations, to the grant of the daily subsistence allowance until the end of the period of precarious employment, plus one month, regardless of whether he has already received that allowance in earlier periods when his employment relationship was also precarious’. (6)

Pointing out, finally, that the aim pursued by the grant of the daily subsistence allowance, as determined in previous (7) namely ‘to compensate the official for the expense and inconvenience occasioned by the need to change residence or to establish provisional residence at his place of employment while maintaining, also on a provisional basis, his residence at the place where he was recruited or previously employed’, is appropriate to the circumstances of this case (maintenance of two residences: one for his family in Belgium and one close to his place of employment), (8) the Court of First Instance concluded that Mr Vienne was indeed entitled under the Staff Regulations to payment of the daily subsistence allowance until the end of his probationary period, plus one month. (9)

7.That is why the judgment of 30 November 1993 annulled the Parliament's adverse decision of 2 February 1993 and ordered it to pay the unpaid daily subsistence allowance and pay the costs in their entirety.

8.It is that judgment that the Parliament seeks to have set aside.

9.In support of its appeal, the Parliament advances, essentially, two pleas alleging infringement of Community law:

the judgment contains an error of law as to the interpretation of Article 71 of the Staff Regulations (in paragraph 32 of the judgment);

the judgment contains several errors of law as to the application of Article 10 (in paragraphs 27, 31 and 34).

10.Mr Vienne states, as a preliminary point, (10) that there are doubts as to the admissibility of the appeal, in so far as the Parliament seeks review by the Court of Justice of matters of fact settled by the Court of First Instance. I shall give my view on that point, if need be, when considering each of the pleas in law successively.

I — Did the Court of First Instance misinterpret Article 71 of the Staff Regulations?

11.Article 71 of the Staff Regulations (11) provides:

‘An official shall be entitled, as provided for in Annex VII, to reimbursement of expenses incurred by him on taking up appointment ...’.

The Parliament considers that, in paragraph 32 of the judgment, the Court of First Instance erred by interpreting the term ‘taking up appointment’, as used in Article 71 of the Staff Regulations, ‘as referring only to the taking up of an appointment following a formal appointment to a post as an official’. It contends, on the other hand, that that term must be taken to extend to every instance of taking up an appointment with a Community institution, on whatever terms, including as a member of the temporary staff or auxiliary staff, on the ground that ‘taking up appointment’ can occur only once. (12)

13.An examination of Article 71 of the Staff Regulations and of its context clearly shows that there can be no question of supporting the interpretation contended for by the Parliament.

That provision operates, it will be remembered, as part of the Staff Regulations of officials of the European Communities. Thus, that provision applies, in principle, only to officials, as the Court of First Instance points out. Admittedly, there are numerous exceptions, since many provisions of the Conditions of Employment of Other Servants make reference to the Staff Regulations. Where such reference is made, it is necessary to read the provisions of the Staff Regulations and of the Conditions of Employment of Other Servants in parallel, so that other employees of the Communities are placed on the same footing as officials. But Article 71 is not one of those provisions. On the contrary, each set of rules relating respectively to officials, temporary staff and auxiliary staff contains a chapter concerning ‘Remuneration and expenses’. Article 71 of the Staff Regulations appears in such a chapter. No direct reference is made to that article in the Conditions of Employment of Other Servants, but they contain provisions which are very close to it. Thus, Article 22 provides: ‘... a member of the temporary staff shall be entitled, in accordance with Articles 5 to 15 of Annex VII to the Staff Regulations, to reimbursement of expenses incurred by him on taking up appointment ...’. A comparison of those provisions shows, in my view, that the reimbursement of expenses must be granted for each instance of taking up appointment, whether as a contractual employee or as an official. Accordingly, having noted that ‘the duties performed by an official can be distinguished, from the legal point of view, from those performed by a member of the auxiliary or temporary staff since the employment status of the persons concerned is different’ (see Sperber ν Court of Justice, cited above, paragraph 8), the Court of First Instance did not misinterpret Article 71 of the Staff Regulations when it went on to say ‘The term “taking up appointment” (within the meaning of that article) can therefore be construed as referring only to the taking up of an appointment following a formal appointment to a post as an official’.

15.It is appropriate, next, to refute the arguments on which the Parliament purports to base its plea, which it educes from the judgment in Campolongo.

16.In that judgment, the Court of Justice relied on the principle of ‘the operational unity of the European Communities and associated institutions’ in order to refuse ‘aggregation of a severance grant from one with an allowance on entry into service from another’. From this, the Parliament infers that ‘the same allowance cannot be paid twice to the same person for the same reason’. However, I cannot see in what respect the interpretation of Article 71 of the Staff Regulations adopted by the Court of First Instance is incompatible with the authority just cited. As the Court of First Instance points out in paragraph 37, ‘... that judgment of the Court of Justice relates to circumstances entirely different from those of the present case’. First, whilst in this case it is called on to examine the situation of an official who has successively been employed on various different terms in the same institution, in that case the Court had to consider the situation of an official who merely left the employment of one institution (the High Authority) of a European Community (the ECSC) to take up employment in another institution (the European Investment Bank) of a different European Community (the EEC). Secondly, in that case there was an overlap not of the daily subsistence allowance but of a severance allowance and an installation allowance. Finally, it should be noted that the relevant legislation is different in the two cases: when judgment was given in Campolongo, there were no ‘staff regulations applying to officials of all the European Communities’.

17.I conclude therefore that the principle of the operational unity of the Communities is not applicable to the present case.

18.The first plea is therefore unfounded.

II — Did the Court of First Instance misinterpret Article 10 of Annex VII to the Staff Regulations?

19.The Parliament considers, first, that the Court of First Instance disregarded a matter of fact, resulting in an breach of Article 10, in paragraph 27 of its judgment, in which it states: ‘... the subject-matter of this dispute is limited to the question whether the applicant, as a probationary official who had not yet transferred his residence or received an installation allowance, is entitled ...’. According to the Parliament, ‘... Mr Vienne, when a member of the temporary staff, applied for and did in fact obtain from the Parliament an installation allowance’.

20.It should be noted that, as pointed out by the respondent, the question whether he actually received an installation allowance is a matter of fact outside the jurisdiction of this Court. Pursuant to Article 51 of the Statute of the Court of Justice of the EC, the Court has jurisdiction only over matters of law.

21.Let me also say that this plea is based on a superficial reading of the contested judgment. Whilst the Parliament observes in its appeal that ‘... Mr Vienne, when a member of the temporary staff, applied for an obtained an installation allowance from the Parliament, the Court of First Instance for its part confined itself to observing that ‘... the applicant, as a probationary official who had not yet transferred his residence or received an installation allowance, is entitled ...’. Thus, in so far as the Parliament refers in its appeal to a period of employment not dealt with in the contested judgment, the Court of First Instance cannot be accused of any incorrect appraisal of the facts resulting in a breach of Article 10.

22.The first part of this plea is therefore unfounded.

23.Secondly, the Parliament considers that, in paragraph 31 of the judgment, the Court of First Instance was wrong to reject the Parliament's view that Mr Vienne is not entitled to the daily subsistence allowance through failure to fulfil the obligation laid down in Article 10 to furnish evidence of having to change his place of residence. In reply to that objection, the Court of First Instance held that ‘... that view disregards the continuous and enduring nature of the obligation to pay allowances imposed by that provision on institutions with respect to their officials’. In its appeal, the Parliament contends that the Court of First Instance thereby comes to the conclusion that ‘... account should not be taken of the mandatory condition laid down in Article 10 and that, consequently, it is permissible to overlook the fact that the person concerned did not change his place of residence ...‘, and infers that ’That conclusion ... is manifestly contrary to the letter and the spirit of Article 10 of the Staff Regulations ...’.

24.It seems to me, however, that this plea stretches the conclusion drawn by the Court of First Instance. Indeed, in that paragraph, the Court does not reject the view that in order to receive the daily subsistence allowance provided for in Article 10 an official must change his place of residence, contrary to the Parliament's contention. The view that the Court of First Instance does reject, in response to an argument advanced by the Parliament, is that in this case the official did not have to change residence. And the finding of the Court of First Instance on this point cannot be challenged.

25.It is true that payment of the daily subsistence allowance is conditional upon the official's having to change his place of residence to meet the requirements of Article 20 of the Staff Regulations, which requires him to reside at his place of employment. However, it is as well to be clear as to what ‘residence’ means here. It does not necessarily mean the residence that the person concerned occupied immediately before his appointment. The Court has consistently construed the term residence as meaning the place where the person concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. The Court of First Instance was therefore right to consider that Mr Vienne's abode in Messancy was not his ‘residence’ for the purposes of Article 10, since he lived there only in order to fulfil his obligations as an employee in a precarious employment relationship, as the Court of First Instance goes on to explain.

It was in fact Mr Vienne's Brussels residence, where his family was still living, that was to be regarded as his ‘residence’ for the purposes of the Staff Regulations. It is common ground that, despite being assigned to successive posts in the same institution, the respondent was required, on each occasion, ‘to change his place of residence’. That condition being fulfilled, payment of the allowance provided for by Article 10 could not be withheld.

26.Those considerations must be borne in mind when reading paragraph 31 of the contested judgment, in which the Court of First Instance certainly did not misconstrue the requirement concerning the change of residence referred to in Article 10. That is why the second part of the plea likewise cannot be upheld.

Thirdly, the Parliament contends that the Court of First Instance made an error in paragraph 34 of the judgment by considering that the daily subsistence allowance is granted to probationary officials for a specific purpose, namely ‘to encourage the person concerned to refrain from transferring his residence, a move which, in the event of his not being established, would be premature and would, in the event of termination of his service, give rise, pursuant to Article 9(1) and (2) of Annex VII to the Staff Regulations, to a double reimbursement of removal expenses’. According to the Parliament, in such circumstances a double reimbursement would be impossible because only an established official would be entitled to such reimbursement, pursuant to Article 9(3) of Annex VII to the Staff Regulations. (32)

Let us examine that provision. The first two paragraphs of Article 9 provide respectively for reimbursement of an official's removal expenses for the move from his place of origin to his place of employment and reimbursement of the same expenses, upon his termination of service, for the move from his place of employment to his place of origin. The third paragraph of that article sets the time-limits within which the removals must be effected. Thus, ‘In the case of an established official, removal (from the place of origin to the place of employment) shall be effected within one year of the end of his probationary period.’ (33)

28.The latter provision is susceptible of two different interpretations.

29.According to the first, the Community legislature did not merely lay down a maximum time-limit (one year after the end of the probationary period) beyond which reimbursement is no longer available. It is thus necessary to interpret that provision as indicating that removal must be effected no later than that date to qualify for reimbursement. If that approach were adopted, a probationary official could of course receive that reimbursement provided that he observed the prescribed time-limit. In all likelihood, that is the interpretation of Article 9 of Annex VII to the Staff Regulations which the Court of First Instance relied on in paragraph 34 of its judgment.

It seems to me, however, that, as the Parliament points out, that provision must be taken to have an entirely different meaning — a view with which, moreover, the respondent does not disagree. (34) Whilst it is true, according to the first interpretation set out above, that the Community legislature set a time-limit beyond which reimbursement is not available, that is not the only condition laid down. Thus, Article 9(3) also specifies the time as from which removal ‘shall’ be effected in order to qualify for reimbursement, namely the ‘end of his probationary period’. And since time thus starts to run at the end of the probationary period, it must be inferred that probationary officials who, by definition, have not completed their probationary period, are excluded from the benefit of reimbursement of removal expenses. That interpretation is supported, moreover, by the use of the term ‘established official’ in Article 9(3). That is also the construction advocated by the Legal Service of the European Commission. (35)

32.According to the latter — and in my view the only proper — interpretation, it must therefore be conceded that the Court of First Instance erred in its assessment of the specific aim pursued by granting the daily subsistence allowance in the present case.

However, it seems to me that Article 9(3) confirms the precarious nature of the employment position of a probationary official, which the Court of First Instance in fact emphasized (36) and which, by itself, justifies the grant of the daily subsistence allowance. By providing that, in order to qualify for reimbursement, the removal must be effected within one year after ‘the end of the probationary period’, the Community legislature emphasized that it is only at that moment that an official's engagement is consolidated and his link with the institution ceases to be precarious. It is also apparent that neither members of the auxiliary staff nor members of the temporary staff recruited for a period of less than 12 months (37) are entitled to reimbursement of removal expenses, a fact which further emphasizes that the legislature took account of the precarious nature of their engagement.

Accordingly, the Court of First Instance was right to consider that Mr Vienne's circumstances, the salient feature of which, throughout each of his successive employment relationships, was their precariousness, ‘indeed fell within the scope of the aim pursued by the grant of the daily subsistence allowance, namely to compensate the official for the expense and inconvenience occasioned by the need to change residence or to establish provisional residence at his place of employment while maintaining, also on a provisional basis, his previous residence (Case 280/85 Mouzonrakis ν Parliament [1985] ECR 589, paragraph 9, and Case T-63/91 Benzler ν Commission [1992] ECR II-2095, paragraph 20)’. (38)

In itself, that affirmation that the circumstances of the present case were indeed in harmony with the ratio legis of Article 10, as consistently expounded in earlier decisions, (39) is thus sufficient to show that the Court of First Instance did not misinterpret Article 10 of Annex VII to the Staff Regulations, the reference, in paragraph 34 of the judgment, to the ‘specific aim’ supposedly pursued by the provision being, in my opinion, of no importance.

36.I am therefore of the opinion that the last part of the present plea, although well founded, is not such as to justify annulment of the contested judgment.

37.In the light of the foregoing considerations, I therefore suggest that the Court dismiss the appeal brought by the Parliament and order the Parliament to pay the costs pursuant to the first and second paragraphs of Article 122 of the Rules of Procedure.

*1 Original langunge: French.

1 Case T-15/93 Vienne ν Parliament [1993] ECR II-1327.

2 Article 20 of the Staff Regulations is worded as follows: ‘An official shall reside either in the place where he is employed or at no greater distance therefrom as is compatible with the proper performance of his duties’.

3 Articles 25 and 69 of the Conditions of Employment of Other Servants.

4 Paragraph 30 of the contested judgment.

5 Ibid., paragraph 33.

6 Ibid., paragraph 34.

7 Case 280/85 Mouzourakis ν Parliament [1987] ECR 589, paragraph 9, and Case T-63/91 Benzler ν Commission [1992] ECR II-2905, paragraph 20.

(8) Paragraph 35 of the contested judgment.

(9) Ibid., paragraph 36.

(10) Paragraphs 1, 2 and 3 of his response.

(11) Article 71 appears in Section 2 (‘Expenses’) of Chapter 1 (‘Remuneration and expenses’) of Title V (‘Emoluments and social security benefits of officials’).

(12) Paragraphs 43 to 46 of the appeal.

(13) Chapter 1 of Title V of the Staff Regulations, Chapter 5 of Title Π of the Conditions of Employment of Other Servants and Chapter 5 of Title III of the Conditions of Employment of Other Servants.

(14) Paragraph 32 of the contested judgment.

(15) Joined Cases 27 and 39/59 Campolongo ν High Authority [1960] ECR 391.

(16) Ibid., p. 405.

(17) Paragraph 47 of the appeal.

(18) At page 393 of the judgment.

(19) Paragraphs 40, 41 and 42 of the appeal.

(20) Emphasis added.

(21) Paragraph 33 of the appeal, emphasis added.

(22) Paragraphs 60 et seq. of the response.

(23) See the consistent case-law of the Court, for example Case C-346/90 Ρ F. ν Commission [1992] ECR I-2691, paragraphs 7 and 10, and Case C-136/92 Ρ Commission ν Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 66.

(24) Paragraph 33 of the appeal, emphasis added.

(25) Paragraph 27 of the contested judgment, emphasis added.

(26) Ibid.

(27) Ibid., paragraph 31.

(28) Paragraph 50 of the appeal.

(29) Ibid., paragraph 51.

(30) See for example Benzler, cited in note 7, paragraph 25, and Case C-452/93 Ρ Magdalena Fernandez ν Commission [1994] ECR I-4295, paragraph 22.

(31) Paragraphs 33 and 34 of the contested judgment.

(32) Paragraphs 52 et seq. of the appeal.

(33) Article 9(3) of Annex VII to the Staff Regulations, emphasis added.

(34) Paragraphs 72 and 73 of the response.

(35) See the document produced by the parties: the annex to the response and Annex IV to the appeal, note 1, page 3.

(36) Paragraph 33 of the contested judgment.

(37) Article 23 of the employment.

(38) Paragraph 35 of the contested judgment.

(39) See in addition to the judgments cited by the Court of First Instance, Case C-148/73 Louwage ν Commission [1974] ECR 81, paragraph 25.